SB1099ham001 98TH GENERAL ASSEMBLY

Rep. Barbara Flynn Currie

Filed: 5/23/2014

09800SB1099ham001 LRB098 05364 DRJ 60166 a

AMENDMENT TO SENATE BILL 1099

AMENDMENT NO. ______. Amend Senate Bill 1099 by replacing everything after the enacting clause with the following:

"Section 5. The Consumer Fraud and Deceptive Business Practices Act is amended by adding Section 2RRR as follows:

(815 ILCS 505/2RRR new)

Sec. 2RRR. Unfair or deceptive copyright infringement demand letters.

(a) As used in this Section:

"Affiliated person" means a person affiliated with the intended recipient of a written or electronic communication.

"Intended recipient" means a person who receives a written communication alleging that he or she engaged in conduct that allegedly violates the copyright protection available to another person.

(b) It is an unlawful practice under this Act for a person, in connection with the assertion of a United States copyright, to send or cause any person to send any written, including electronic, communication that states that the intended recipient or any affiliated person is infringing or has infringed a copyright and bears liability or owes compensation to another person, if:

(1) the communication falsely threatens that administrative or judicial relief will be sought if compensation is not paid or the infringement issue is not otherwise resolved;

(2) the communication falsely states that litigation has been filed against the intended recipient or any affiliated person;

(3) the assertions contained in the communication lack a reasonable basis in fact or law because:

(A) the person asserting the copyright is not a person, or does not represent a person, with the current right to license the copyright to or enforce the copyright against the intended recipient or any affiliated person;

(B) the communication seeks compensation on account of activities undertaken after the copyright has expired;

(C) the conduct at issue does not infringe one of the protected rights of a copyright holder;

(D) the alleged infringement at issue has been previously ruled by a court to fall within a fair use exemption; or

(E) the alleged infringement at issue is permissible under any applicable End User License Agreement.

(4) the content of the communication fails to include information necessary to inform an intended recipient or any affiliated person about the copyright assertion by failing to include the following:

(A) the identity of the person asserting a right to license the copyright to or enforce the copyright against the intended recipient or any affiliated person;

(B) any registration that was filed with the United States Copyright Office;

(C) the factual allegations concerning the specific areas in which the intended recipient's or affiliated person's actions infringed the copyright or are covered by the claims in the copyright;

(D) the content of the communication fails to clearly state in bold font that no court has yet made a determination that the intended recipient has infringed or is liable in any way for payment of damages; and

(E) any factual information necessary to conclude that the work at issue is protected by copyright law.

(c) Nothing in this Section shall be construed to deem it an unlawful practice for any person who owns or has the right to license or enforce a copyright to:

(1) advise others of that ownership or right of license or enforcement;

(2) communicate to others that the copyright is available for license or sale;

(3) notify another of the infringement of the copyright; or

(4) seek compensation on account of past or present infringement or for a license to the copyright.

(d) Nothing in this Section shall be construed to apply to take-down notices from copyright owners to service providers under the Digital Millenium Copyright Act, 17 U.S.C. 512.

Section 99. Effective date. This Act takes effect January 1, 2015.".